Carmichael v. City of Texarkana, Ark.

• Decision Date: 08 May 1899
• Citation: 94 F. 561
• Parties: CARMICHAEL et ux. v. CITY OF TEXARKANA, ARK., et al.
• Court: U.S. District Court — Western District of Arkansas

94 F. 561

CARMICHAEL et ux. v. CITY OF TEXARKANA, ARK., et al.

United States Circuit Court, W.D. Arkansas.

May 8, 1899

The bill in this case alleges, in substance: That the plaintiffs are husband and wife, and citizens and residents of Bowie county, in the state of Texas. That the city of Texarkana Ark., is a municipal corporation, duly incorporated under the laws of Arkansas, situate in Miller county, state of Arkansas, with J. W. Mullins as its mayor. That the Water Company of Texarkana, Ark., is duly incorporated and operated under and by virtue of the laws of the state of Arkansas with R. A. Munson its superintendent and agent, and has its general office in Miller county, state of Arkansas; that F W. Mullins, F. J. Ahern, R. J. O'Dwyer, Q. O. Turner, Joe Huckins, Sr., W. J. Burhman, J. W. Harris, and R. A. Munson are citizens of Miller county, state of Arkansas. That on July 1, 1888, the plaintiffs owned in their own right, in fee simple, and were in the possession and enjoyment of, a good homestead, consisting of 45 acres of land, situate in Bowie county, state of Texas, on the line of the state of Arkansas and state of Texas, said homestead consisting of block S, of 40 acres, and block P, of 5 acres, of the Jacob Carsen headright survey, according to the map of the Texas & Pacific Railway Company of Texarkana. That between July 1, 1888 and July 1, 1896, they made permanent and valuable improvements on their said homestead, consisting of dwelling houses outhouses, barns, gardens, orchards, vineyards, and by clearing, fencing, and putting in a high state of cultivation nearly all of their said homestead, which was of great value, from which homestead they for eight years received and enjoyed the greatest comforts, pleasures, support, and maintenance, without hindrance. That there is running through said homestead a branch or brook for a distance of 200 years or over, fed by springs of pure water, which creek of living water contributed greatly to the pleasure, comfort, health, and support of their family from July 1, 1888, to July 1, 1896. That several years before the bill was filed they commenced to run a dairy on their said home. They bought, raised, and kept 33 cows, of high grade cattle, keeping them in a meadow through which said springs of pure living water flowed continually, contributing very greatly to the health, comfort, and maintenance of their family, and for the market of Texarkana, said dairy business being a source of comfort and profit. That before July 1, 1898, the city of Texarkana, Ark., through its duly-constituted authorities, created a sewer-improvement district within its limits for the construction and maintenance of a system of sewerage for said district. That the said sewers were constructed, consisting of main sewers, pipes, and connections with the main and lateral sewers, with one main sewer leading to a point immediately opposite plaintiffs' homestead, about eight feet from the state line, on the Arkansas side. That said sewers are connected with the residences, business houses, privies, and sinks of the said defendants F. W. Mullins, P. J. Ahern, R. J. O'Dwyer, Q. O. Turner, Joe Huckins, Sr., W. J. Burhman, J. W. Harris, and R. A. Munson, from which said sewers receive, and convey to its dumping ground, all the filth, slops, excrement, urine, and foul and offensive putrid matter collected from said privies and sinks connected with said sewers. That the said sewer system, when completed, was turned over to the said city of Texarkana, Ark., which said city is now and has maintained and kept up and operated said sewer system for the last two years in connection with the said Water Company of Texarkana, Ark. That the defendants, acting together, are now, and have been for the last two years, using the said sewer mains, laterals, and pipes of the said sewer plant to receive and convey to its dumping ground the said offensive and putrid matter hereinbefore mentioned. That said defendants, acting together, by means of said sewer plant, its mains and pipes, have created a great cesspool of foul and putrid matter and sewer gas at the end of the main sewer pipe leading out of the city of Texarkana, which open sewer empties into a little stream, known as 'Nix's Creek,' at a point about eight feet east of the state line, in Miller county, in the state of Arkansas, which cesspool has been maintained and kept alive by the said defendants, acting together with others, for the last two years, by means of said Texarkana sewer plant. That said defendants, acting together, are now maintaining and keeping alive the said cesspool from day to day, and month to month, and year to year by means of the said sewer plant, its mains and pipes, and threaten to maintain and keep alive the said cesspool perpetually. That the said cesspool is a great nuisance, because it fouls, pollutes, corrupts, contaminates, and poisons the water of said Nix's creek flowing from said cesspool along down said creek for a distance of several miles, which said creek runs through plaintiffs' land and homestead and premises just below the cesspool for a distance of over 200 yards, depositing the foul and offensive matter referred to in the bed of said creek on plaintiffs' land and homestead continuously from month to month and year to year, the said creek being too weak and small to carry away the amount of such deposit. That by reason of such deposits and of the sewer gas and poison air arising out of and from said cesspool and being carried by the winds and drawn by the sun on plaintiffs' homestead at a distance of 250 yards, and by the creation of the germs of disease in the cesspool, which are carried by the winds upon plaintiffs' said homestead, they are deprived of the pleasure, comforts, and enjoyment thereof, the same being a standing menace to their pleasure, comfort, health, and lives, and that of their family, keeping them in constant dread of sickness and disease, and depriving them of the use and benefit of said creek running through their land and premises in a pure and natural state as it was before the creation of said cesspool by means of said open sewer, for the use of their family, dairy cattle, and other domestic animals, fowls, and fish. That plaintiffs were compelled to cease and quit using the water running through the creek for their family, dairy cows, and other domestic animals, as they were accustomed to do from July 1, 1888, to July 1, 1896, the time said cesspool and nuisance was created. That plaintiffs have been compelled, by reason of said nuisance, to obtain water for the use of their family, cows, domestic animals, fowls, etc., from the Texarkana Water Company, at a cost to them of $500 for connecting their homestead and premises with its plant, and about $200 in water tolls from July, 1896, to July, 1898. The plaintiffs further allege that their land, homestead, and premises, by reason of said nuisance, have been damaged and decreased in value in the sum of $5,000, and in the sum of $2,000 in being deprived of the pleasures, comforts, enjoyment, support, and maintenance of their land, homestead, and premises for two years, and $2,000 by reason of the constant dread of disease and pestilence to themselves and family.

The plaintiffs further allege that the Water Company of Texarkana, Arkansas, acting by and through R. A. Munson, its superintendent and agent, on July 1, 1896, connected its water mains and pipes with the sewer mains, laterals, and pipes of the sewer plant of the defendant city of Texarkana Ark.; that the said two defendant companies, acting together, connected said sewer mains, laterals, and pipes with the residences, business houses, privies, and sinks of all the said defendants, as well as a great number of other inhabitants of the city of Texarkana, Ark.; and that they, the defendants, all acting together, have deposited a great amount of filth, slops, etc., in the said privies and sinks, and carried the same through the said sewer mains, laterals, and pipes by means of water furnished by the said defendant water company to the said dumping ground and open sewer,-- the said cesspool hereinbefore mentioned,--from July 1, 1896, to the filing of the bill; and that all the defendants, acting together, are now carrying all of said filth and other putrid matter through said sewers onto plaintiffs' land, homestead, and premises, thereby creating and continuously maintaining the nuisance aforesaid. The plaintiffs further allege that there is no excuse for said open sewer, cesspool, and nuisance in the city of Texarkana, Ark., nor on the borders of the same, because the said open sewer could have been extended down the said creek valley underground to a safe distance from the city and from the inhabitants of the same, with small cost compared with the comfort, health, and lives of the plaintiffs and their family and the inhabitants of Texarkana. They allege that a judgment of a court of law would be inadequate for the damages sustained by them; that a court of law has no power to abate said nuisance, or to enjoin the defendants from keeping and maintaining the same; and that a court of equity alone has the power to abate said nuisance, and to enjoin and restrain the said defendants from keeping and maintaining the same. They further allege that they have dwelling houses, outhouses, and barns situated within 250 yards of the said open sewer, and a number of tenement houses within 150 yards of the same. They pray for a subpoena for all the defendants, and that they be required to answer the bill, an answer under oath being waived; (2) for an injunction pending the suit, and for judgment and decree against the defendants, abating the said open sewer, cesspool, and nuisance, and for an injunction...